Defending Against a Partition Action for an Inherited Home in West Virginia

Disclaimer: This is educational information only and not legal advice. Consult a licensed West Virginia attorney about your specific situation before taking action.

Detailed Answer

1. The basic legal framework in West Virginia

When two or more people own real estate together (commonly after an inheritance), any co‑owner can typically file a partition action to divide the property or force a sale. West Virginia’s statutory law and court process govern how partition actions proceed, how courts may divide or order sale of property, and how proceeds are distributed. For the statutory framework for partition actions, see West Virginia Code Title 38 (Partition of Lands): https://code.wvlegislature.gov/38/.

2. Important ownership concepts

Tenancy in common: The most common form after an intestate inheritance or when a will leaves property to two or more heirs. Each owner has an undivided share that can be different sizes and can be transferred independently.
Joint tenancy with rights of survivorship: Less common in intestate distributions; ownership automatically passes to other joint tenants on a death.

3. How partition actions work (overview)

A co‑tenant files a complaint in circuit court asking the court either to physically divide the land (“partition in kind”) or, when that is impractical (for a single house on one lot), to order sale and split the proceeds. The court may appoint commissioners to value and divide property or order a sale by sheriff/commissioners and distribute net proceeds after liens, expenses, and credits.

4. Common defenses and practical strategies to oppose or limit a forced sale

Below are the most commonly used defenses and strategic responses. Which apply depends on the facts and documents you can produce.

Challenge standing or legal defects: If the plaintiff is not a co‑owner, misnamed, or failed to follow service rules, raise procedural defenses in your answer. Timely file a response and assert any jurisdictional or service defects.
Assert an express agreement that limits partition: If the co‑owners have a valid written agreement (for example, a buy‑sell, family agreement, or terms in the will) that restricts partition or requires a buyout before sale, present that agreement to the court and ask that the partition be stayed or modified to honor the agreement.
Ask for a buyout instead of sale: Offer or request that the court allow one co‑owner to purchase the other’s share using an appraisal or court valuation. Courts may favor a buyout if it is practical and fair, particularly when the property has special sentimental value (family home) or when sale would be inequitable.
Request partition in kind (division) if feasible: For multiple‑parcel properties or large tracts, an in‑kind division may be possible. For a single-family home on one lot, partition in kind will usually be impractical, but you should still request it if any realistic division exists.
Claim credits or reimbursements: If you paid mortgage, property taxes, insurance, or made improvements that increased the property’s value, ask the court to credit those payments against your share of proceeds. Keep documentary proof (bank records, cancelled checks, receipts, invoices). Courts typically account for necessary outlays and may reduce the selling co‑tenant’s share accordingly.
Prove ouster or exclusive possession claims: If a co‑tenant wrongfully excluded another from occupation (an ouster), the excluded co‑tenant may obtain an offset for use and occupancy or other equitable relief. Similarly, if one co‑tenant paid all mortgage/taxes and the other refused to contribute, the paying co‑tenant may seek contribution or reimbursement.
Show inequitable circumstances: Courts exercise equitable discretion. If forced sale would be unduly harsh (for example, to an elderly owner or minor heir living in the house), ask the court to delay sale, order a buyout, or otherwise fashion equitable relief. Be prepared to show concrete harm and alternatives.
Negotiate and use mediation: Courts often encourage settlement. Offer mediation early to discuss buyouts, timed sales, or one party purchasing the other’s interest. A good settlement can avoid sale costs and attorney fees.

5. Procedural steps you should take right away

Immediately gather key documents: deed, will or probate records, title report, mortgage records, tax bills, receipts for repairs/improvements, insurance bills, and communications with co‑owners.
File a written answer or responsive pleading on time. Missing court deadlines can forfeit defenses. If you were served with a complaint, check the summons for deadline information and respond promptly.
Assert affirmative defenses and counterclaims (for reimbursement, accounting, or injunctive relief) in your response if you have grounds.
Ask the court for temporary relief if necessary—e.g., a temporary injunction to prevent an immediate sale while disputes (valuation, accounting) are resolved. Injunctions require showing risk of irreparable harm and a likelihood of success on the merits.
Request appraisal/valuation and seek an accounting of payments and liens before any sale.

6. What the court will consider when deciding whether to sell

The court will weigh whether a physical division is feasible, whether sale is the only just outcome, the relative contributions and equities of the parties, outstanding liens (mortgage, tax liens), and whether a buyout is practical. The court aims to reach an equitable distribution after crediting necessary expenditures and lien priorities.

7. Costs and timing to expect

Partition cases typically involve court filing fees, possible appraisal costs, commissioners’ fees, attorney fees, and sale costs (real estate commission, closing costs). These expenses are usually paid from sale proceeds or assessed between the parties depending on outcome. Expect months for resolution—sometimes longer if appeals or complex accounting claims arise.

8. When to hire a West Virginia attorney

Hire an attorney if: deadlines have started, complex title/probate issues exist, large sums or family homes are at stake, co‑tenants assert misconduct (e.g., fraud, concealment), or you want to pursue a buyout/reimbursement claim. An attorney will draft pleadings, gather evidence, negotiate, and represent you at hearings. Look for a lawyer with experience in partition, probate, real estate, and civil litigation in West Virginia.

Helpful Hints

Document everything. Keep proof of payments (mortgage, taxes, repairs) and communications about the property.
Get a current appraisal early. It helps support buyout offers and shows market value for division of proceeds.
Act promptly. Missing the deadline to respond can forfeit legal defenses and give the other side an advantage.
Consider mediation. A mediated buyout or sale plan can save time and money and preserve family relationships.
Know lien priority. Mortgages and tax liens typically get paid before co‑owners split net proceeds. Verify payoff amounts before negotiations.
Keep occupancy issues separate. If you live in the inherited home, ask the court to consider occupancy value or grant time to move before sale.
Ask the court for an accounting. If the other co‑tenant claims major unpaid balances or improvements, request a formal accounting and supporting documents.
Don’t rely on verbal promises. A signed written agreement (even between siblings) is far stronger than verbal understandings when court issues arise.
Request credits for improvements that increased the property value, not only repairs that merely maintained it.

Where to learn more

For statutory background on partition in West Virginia, review the West Virginia Code, Title 38 (Partition of Lands): https://code.wvlegislature.gov/38/. For court procedure and forms, contact the clerk of the circuit court in the county where the property is located or consult a West Virginia civil litigator experienced with partition and probate matters.

If you want next steps tailored to your situation, gather your deed, any probate paperwork, mortgage records, and receipts for major payments and contact a West Virginia attorney to discuss whether you can obtain a buyout, credit for payments, or other equitable relief.